BANCEL v. UNITED STATES

BANCEL v. UNITED STATES. (Circuit Court, S. D. New York. November 10, 1909.) No. 5,512. Customs Duties (§ 43) — Classification—Modeling Clay — Plastilina—Si-militude — “Clay. ’ ’ Plastilina, or modeling clay, an article not containing clay, is not dutiable as “clay,” either .directly or by similitude, under Tariff Act July 24, 1897, c. 11, § 1, Schedule B, par. 93, 30 Stat. 156 (U. S. Comp. St. 1901, p. 1632), but as an “unenumerated manufacture,” under section 6, 30 Stat. 205 (U. S. Comp. St. 1901, p. 1093). [Ed. Note. — Eor other cases, see Customs Duties, Dee, Dig. § 43.] On Application for Review of a Decision by the Board of United States General Appraisers. In this case the importer sought 'to reverse a decision by the Board of Appraisers that had affirmed the assessment of duty by the collector of customs at the port of New York on merchandise imported under the tariff act of 1897. The Board’s opinion, by Waite, General Appraiser, reads ip. part as follows: “The commodity is known as modeling clay. It is used by artists and others engaged in plastic work, for making busts and models. The chemist reports that it contains 00.30 per cent of sulphur and 31.12 per cent of fatty anhydri-des, with a small amount of each of the following ingredients: Unsaponifiable oil, zinc oxide combined, zinc oxide free, insoluable siliceous matter, and color. The report further states that the presence of clay cannot be demonstrated. * * * xhe fact that the substance is very high in price would indicate that it is not properly classifiable as ‘clay.’ * * * The testimony and invoices show that the cost in the country from which it is exported is over $150 per ton.” Kammerlohr & Duffy (Joseph G. Kammerlohr, of counsel), for importer. D. Drank Rloyd, Deputy Asst. Atty.- Gen. (William A. Robertson, of counsel), for the United States. For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes [MAJORITY — MARTIN, District Judge.] MARTIN, District Judge. The merchandise in question is invoiced as modeling clay, and is also sometimes called plastilina.' It was assessed for duty at 20 per cent, ad valorem under Tariff Act July 24, 1897, c. 11, § 6,-30 Stat. 205 (U. S. Comp. St. 1901, p. 1093), as a manufactured article, unenumerated. The particular claim of the importer relied upon on the argument was that said merchandise should be assessed as “clay” under section 1, Schedule B, par. 93, 30 Stat. 156 (U. S. Comp. .St. 1901, p. 1632), either directly or by application of the similitude clause of section 7, 30 Stat. 205 (U. S. Comp. St. 1901, p. 1693).. The Board of General Appraisers affirmed the assessment of^the collector. The question presented here seems to be solely one of fact. The Board properly classified the importation upon the facts as it found them. I see nothing in the record to justify the court in changing the Board’s findings. Decision affirmed.